If you’ve ever spent the summer in Guelph, you know that the campus basically turns into a ghost town.
If you have a 12-month lease and plan to return home to work and save up for the new school year, you may be wondering whether or not you are allowed to sublease (that is, lease to a subtenant) over the holidays.
The answer is a qualified yes. Outside of social housing units and superintendents’ units, almost all tenancies can be sublet or assigned. It is important to be aware of the difference between subletting (where the original tenant intends to reoccupy the unit) and assignment (where the original tenant does not intend to return to the unit). The landlord and tenant have different rights and responsibilities in a sublet or an assignment situation.
When it comes to subletting, a landlord can refuse a potential subtenant, but only for a good reason (for example, a failed reference check). Subletting is a fairly straightforward process. The tenant makes a request to the landlord to sublet (the tenant may be on the hook for any out-of-pocket expenses that the landlord incurs as a result of the sublet, such as the cost of a background check). The landlord also has the option to interview the prospective subtenant. Lastly, the subtenant would submit an application to the landlord as if they were a new tenant.
Be aware that in a sublet situation the original tenant remains responsible for the payment of rent and all other obligations of the tenancy. So, if you sublet to someone who is irresponsible, you will be liable if something goes wrong. Also note that it is illegal to sublet a room or unit for more than the lawful rent, to collect a fee for subletting, or to require payment of goods or services as a condition of the sublet.
In an assignment situation, on the other hand, the subtenant takes on all responsibilities and liability for rent, damages, and so on, and would handle everything directly with the landlord. Basically if you assign the rest of your lease then you wash your hands of it and have nothing further to do with the property or the landlord.
In university towns, such as Guelph, it is often the case that parents may own a house their child occupies and the other rooms are rented out. Generally speaking, if this is the case there is no difference legally between a landlord who is a family member or friend and a landlord who is a complete stranger. The rules for subletting are the same regardless of who the landlord is or if the landlord lives on the premises or not.
However there are some considerations when it comes to a landlord wanting to make personal use of a rental unit. If your parents own a house with existing tenants, or purchase a house with existing tenants but want to evict those tenants so you can move in, they must do the following if the ‘residential complex’ contains three or fewer units (note that a unit is an individual dwelling with its own entrances and mailboxes):
Provide 60 days’ notice before the end of the tenancy agreement. A landlord cannot bring a tenancy to an early end on this ground, it must be 60 days before the end of the period outlined in the tenancy agreement.
The new tenant must be the owner or landlord’s spouse, child, parent, or caregiver. Personal use under the Residential Tenancies Act refers to immediate family. This does not apply to grandparents, friends, or any other relative.
The intention to occupy the unit must be in good faith. The landlord or owner must genuinely want to have the unit available for an immediate family member. There doesn’t need to be any desperate need or special requirement, simply that the landlord genuinely wants to have the unit occupied by a family member.
These laws are found in sections 48-49 of the Residential Tenancies Act.
Do you have a question for Cailen? Email him at info@swainparalegal.com and remember to put The Ontarion in the subject line.